US v. James Jones, No. 08-4387 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4387 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES ERIC JONES, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:06-cr-01238-TLW-1) Submitted: January 29, 2009 Decided: February 20, 2009 Before NIEMEYER, MICHAEL, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Steven M. Hisker, HISKER LAW FIRM, PC, Duncan, South Carolina, for Appellant. Alfred William Walker Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Eric Jones was convicted by a jury of possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e) (2006). Finding that Jones was an armed career criminal under 18 U.S.C. § 924(e) (2006), the district court sentenced him subsequently to 520 amended to months 456 imprisonment, months imprisonment which pursuant was to Fed. R. Crim. P. 35(a). Jones s attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), challenging Jones s designation as an armed career criminal. Counsel states, however, that he has found no meritorious grounds for appeal. Jones has issues. filed a pro se supplemental brief raising several We affirm. Jones s prior convictions include South Carolina convictions for second degree burglary, attempted burglary, two convictions for strong arm robbery, and two convictions for assault and battery of a high and aggravated nature incident to the respective robberies. A defendant is an armed career criminal when he violates 18 U.S.C. § 922(g)(1) and has three prior convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). A violent felony is one that has as an element the use, attempted use, or threatened use of physical force against the person of another 2 or otherwise involves conduct that presents injury to another. Guidelines Manual a serious potential risk of physical 18 U.S.C. § 924(e)(2)(B); U.S. Sentencing § 4B1.2(a)(1) specifically includes burglary. (2007). This definition 18 U.S.C. § 924(e)(2)(B)(ii). To determine whether a state offense falls within the definition of a violent felony, we use a categorical approach, which takes into account only the definition of the offense and the fact of conviction. 286 (4th Cir. 2002). under state law United States v. Pierce, 278 F.3d 282, The particular label or categorization is not controlling. Taylor See v. United States, 495 U.S. 575, 590-91 (1990). South Carolina defines strong or arm robbery as the felonious unlawful taking of money, goods, or other personal property of any value from the person of another or in his presence by violence or by putting such person in fear. (S.C. 1996) (internal State v. Gourdine, 472 S.E.2d 241, 241 quotation marks and citation omitted). Assault and battery of a high and aggravated nature is defined as the unlawful act of violent injury to another accompanied by State v. Fennell, 531 S.E.2d circumstances of aggravation. 512, 516 (S.C. 2000). A person is guilty of burglary in the second degree if the person enters a dwelling without consent and with intent to commit a crime therein. § 16-11-312 (2005). S.C. Code Ann. As these prior convictions are all violent 3 crimes under 18 U.S.C. § 924(e)(1), we find that the district court did not err in designating Jones an armed career criminal. We have also reviewed the arguments raised in Jones s pro se supplemental brief and find them to be without merit. Although Jones alleges that his trial counsel was ineffective, claims of ineffective counsel generally are not cognizable on United States v. King, 119 F.3d 290, 295 (4th Cir. appeal. 1997). § Jones can pursue this claim in a motion under 28 U.S.C. 2255 (West Supp. 2008). In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. Accordingly, we affirm Jones s conviction and sentence. This court requires that counsel inform Jones, in writing, of the right to petition the Supreme Court of the United States for further review. If Jones requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in and materials legal before court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Jones. facts this We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 4

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